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Bill C-2

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House of Commons Legislative Committee

Introduction

Let me begin by saying that I appreciate the opportunity to be with you here today to share my views on Bill C-2.

I welcome the direction in which the government is moving under Bill C-2. Since I assumed my position, I have governed my Office with the spirit and practice of increasing its transparency and accountability to the Canadian public. I have experienced first-hand the lengthy and difficult struggle of having to restore sound business practices, rebuild staff morale and re-establish public confidence in my Office. I fully support the government’s efforts to put into place necessary mechanisms to help avoid such unfortunate situations from happening again.

Bill C-2 brings the first wave of new amendments to the Access to Information and Privacy Acts. However, I believe there is still major work to be done. Like Access to Information reform, Privacy Act reform is an equally important pre-condition for achieving meaningful government accountability and transparency.

Need for Privacy Act Reform

The Supreme Court of Canada recently stated that the Access to Information and Privacy Acts must be read together as a “seamless code”. When Parliament adopted these companion pieces of legislation 25 years ago, it clearly intended to increase government accountability in two ways: first, by ensuring that access to information under government control is recognized as a right of citizens and, second, by strengthening the individuals’ rights to know what personal information the government has about them and how it is used.

Privacy is not synonymous with secrecy, nor should it be seen as an antonym to access. In fact, openness, accountability and access to one’s personal information are three of the fundamental, and now internationally-recognized, principles of any modern data-protection regime.

At the request of the former Standing Committee on Access to Information, Privacy and Ethics, my Office has prepared a discussion paper on the reform of the Privacy Act, which we will soon be tabling with the Committee.

Specific Provisions in Bill C-2 as they relate to the Privacy Act

Having stated how much we need Privacy Act reform, I believe Bill C-2 is nonetheless a good start. The focus of my remaining comments will be on the few amendments to the Privacy Act proposed in Bill C-2.

Extended scope of application:
While I take the view, as does the Information Commissioner, that a more principled approach is eventually needed to hold all government institutions accountable for their information holdings, the extended coverage proposed by C-2 is still a welcome incremental step. By extending Privacy Act coverage to include more entities, Bill C-2 certainly improves on the status quo. I am concerned, however, with the proposal that seeks to remove certain commercial crown corporations from our private sector Act, the Personal Information Protection and Electronic Documents Act (PIPEDA) and include them instead in the Privacy Act.

Specifically, I am referring to the Canadian Broadcasting Corporation (CBC) and Atomic Energy of Canada Ltd., both of which are Crown Agents currently designated by order to be subject to PIPEDA, as well as Via Rail, which is a federal work, also subject to PIPEDA. The sad reality is that personal information is far better protected in the federally-regulated private sector than it is in the federal public sector. Changing the rules for these commercial crown corporations would actually lower the standard of privacy protection they are required to meet under PIPEDA, equivalent to their private sector competitors who are all presently on a level playing field.

Mandatory Exemption for Investigations:
Bill C-2 exempts from access personal information obtained or created by our Office in the course of an investigation. This provision is parallel to a new section proposed for the Access to Information Act, and I support the inclusion of both these new exemptions in respect of privacy investigations conducted by my Office.

I believe that these new exemptions as they apply to privacy investigations are important to “close the back door,” so that a person who has been denied access to information by a department and brings a complaint to my office, cannot indirectly obtain access to it simply by seeking access to my investigation file which invariably contains a copy of the information in question. Were complainants permitted to do this, they would, in effect, be circumventing the entire deliberative process provided for by law.

Moreover, this exemption is entirely consistent with the existing confidentiality provision in the Privacy Act which aims to protect the ombudsman process in its mission to resolve conflict in an informal manner. The obligation of confidentiality is essential to the ombudsman’s approach, to encourage the parties to engage fully within a conciliatory process, which best functions when the parties reach a mutual state of trust and confidence.

Finally, I would add that, by their very nature, privacy complaints arise out of situations where individuals feel that their personal information rights have been violated. It would only add insult to injury if OPC investigation files, which are created to look into the complainant’s allegation, were publicly accessible, further exacerbating their sense of privacy violation.

Protection of Whistleblowers:
We support the new exemptions being proposed for the Privacy Act to protect whistleblowers under Bill C-11. OPC had voiced support for protecting the identity of whistleblowers when we appeared on Bill C-11.

Disclosure of wrongdoing is an alert to the existence of departmental wrongdoing. The type of investigation envisaged in this legislative scheme does not generally turn on the identity of the whistleblower, but rather, on the veracity of the alleged facts. It is important not to confuse the necessary assessment of the credibility of witnesses in any investigation, including investigations into alleged wrongdoings, with the legislator’s public policy choice to protect the identity of the whistleblower in this specific context. Even where the identity of the whistleblower may be relevant to an investigation, Bill C-11, as amended by C-2, expressly provides that rules of procedural fairness and natural justice continue to apply to the Chief Executive, Integrity Commissioner and Tribunal. In my view, this ensures a proper balance between fairness to the alleged wrongdoer and protection of the whistleblower.

Appointment and Removal Process for Officers of Parliament:
I support the amendments to the appointment and removal process of the Privacy Commissioner under section 53 of the Privacy Act (clause 120 of C-2) which ensure the necessary level of independence appropriate for an Officer of Parliament. Like my colleague, the Auditor General, I would not favour public disclosure of the final vote count which may adversely affect the necessary level of confidence among Parliamentarians in their ultimate choice of Officer.

Alternative Mechanism for Investigating Complaints against the OIC and OPC:
Finally, I bring to your attention what I see as a serious omission in Bill C-2: the absence of a mechanism to investigate access or privacy complaints against the Information and Privacy Commissioners. I would hope that the provisions in Bill C-2 making the two Commissioners subject to both Acts will not come into force until an alternative complaint investigation process is properly established to deal with these new types of situations.

Conclusion

I hope I have given you a clear indication of my views on the new provisions in the proposed in Bill C-2, as well as the importance of reforming the Privacy Act, which is indispensable to ensuring government accountability. I look forward to any questions you may have.